This is a class action civil rights case commenced under
42 U.S.C. § 1983 challenging the detention of persons between the
ages of thirteen and seventeen in Cook County jail.*fn1 The
plaintiffs allege that such incarceration constitutes cruel and
unusual punishment under the Eighth Amendment and violates the
equal protection clause of the Fourteenth Amendment. The cause
is now before the Court on plaintiffs' motion for a preliminary
injunction and defendants' motion to dismiss. For the reasons
set forth below, defendants' motion will be denied; plaintiffs'
motion will be
granted. Insofar as required this opinion shall constitute the
Court's findings of fact and conclusions of law. F.R.Civ.P.
52(a), 65(d).

When transferred to the adult criminal justice system, a
child is physically transferred from the Cook County Juvenile
Temporary Detention Center (Audy Home) to the Cook County jail.
The Cook County jail is a maximum security institution which
houses some 2300 pre-trial detainees, sentenced misdemeanants,
federal prisoners and state prisoners awaiting shipment to
other state institutions. The jail was designed to contain 1300
prisoners, it now holds over 2500 prisoners. In the near
future, however, a new building will open in the facility which
will house 700 to 800 additional individuals.

Children under the age of seventeen are housed in two
locations in the jail, Ward 1 and E-Block. Ward I is the
hospital area within the jail. The vast majority of Ward 1
residents are adults. Some of these adults may have prior
felony convictions. Jail officials maintain that members of the
plaintiff class are placed in Ward 1 for their own protection
against the general jail population. Other residents of Ward 1,
however, may be under severe psychological stress. On occasion,
other residents of Ward 1 have been placed in leather
restraints so that they would not harm themselves or others.
Moreover, Ward 1 is extremely overcrowded. Several plaintiffs
have had to sleep on mattresses, on carts or tables, or on the
floor. No separate eating area is provided in Ward 1.

Defendants have moved to dismiss the instant complaint
asserting that a recent Supreme Court case, Preiser v.
Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973),
requires plaintiffs to exhaust state court remedies. The
Preiser Court held that when a state prisoner is challenging,
in federal court, the fact of his confinement, he cannot
disguise his action as a § 1983 claim but rather must resort to
the judicial remedy of habeas corpus. To obtain a writ of
habeas corpus in federal court a state prisoner must exhaust
his state court remedies. 28 U.S.C. § 2254(b). If a remedy
under the Civil Rights Act is available, a plaintiff need not
first attempt to seek redress in a state court forum. See,
e.g., Houghton v. Shafer, 392 U.S. 639, 88 S.Ct. 2119, 20
L.Ed.2d 1319 (1968); Monroe v. Pape, 365 U.S. 167, 81 S.Ct.
473, 5 L.Ed.2d 492 (1961).

In the instant action, plaintiffs directly attack the
conditions of their confinement. They seek transfer to another
institution only incidently as a matter of relief; if the
conditions of their confinement could be corrected within the
confines of Cook County jail, the alleged constitutional wrong
here would be corrected without transfer to another
institution. Thus, this suit attacks the conditions of
incarceration not the location thereof and the action is
properly brought under § 1983 without exhausting state
remedies. Edwards v. Schmidt, 321 F. Supp. 68 (W.D.Wis. 1971).

B. Standard of Review under the Eighth Amendment

The meaning of cruel and unusual punishment is not fixed. As
the Court stated in Trop v. Dulles, 356 U.S. 86, 101, 78 S.Ct.
590, 598, 2 L.Ed.2d 630 (1958):

"The [8th Amendment] must draw its meaning from
the evolving standards of decency that mark the
progress of a maturing society."

Under these standards courts have accorded juveniles a
particularly high standard of care. For instance, this circuit
has held that persons held under juvenile court jurisdiction
are entitled to adequate rehabilitative treatment. Nelson v.
Heyne, supra. Other courts have held that juveniles held under
juvenile court jurisdiction cannot be mixed with adult
prisoners. See, e.g., White v. Reid, 125 F. Supp. 647 (D.D.C.
1954); Stinnett v. Hegstrom, 178 F. Supp. 17 (D.Conn. 1959).
Contra United States ex rel. Murray v. Owens, supra. The
rationale for these decisions is that the high standard of care
required is a quid pro quo for society's right to exercise its
parens patriae control over juveniles in custody. In effect,
the Supreme Court has held that a juvenile is entitled to a
higher standard of custodial care in return for a more limited
set of rights during the adjudication process under the due
process clause. McKeiver v. Pennsylvania, 403 U.S. 528, 91
S.Ct. 1976, 29 L.Ed.2d 647 (1971); In re Winship, 397 U.S. 358,
90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1,
87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

In the instant action the strict rationale of the above cited
cases is inapplicable. Since the plaintiffs have been
transferred to adult authority, they will receive the full
panoply of criminal constitutional rights to which any adult
would be entitled. Defendants thus argue that plaintiffs are
entitled to no higher standard of care than any other detainee
in the criminal justice system. The Court cannot agree with
this proposition. Children between the ages of 13 and 16 are
not merely smaller versions of the adults incarcerated in Cook
County jail. As noted, the effect of incarceration in Cook
County jail on juveniles can be devastating. At present these
juveniles remain unconvicted of any crime and therefore must be
presumed innocent. Although the Eighth Amendment does not
mandate that this Court become a super-legislature or
super-administrator under these circumstances, the Court is not
powerless to act. Under the Eighth Amendment children who
remain unconvicted of any crime may not be subjected to
devastating psychological and reprehensible physical
conditions, and while other juvenile law cases are not strictly
on point, they recognize that juveniles are different and
should be treated differently. Thus, the evolving standards of
decency that mark the progress of a maturing society require
that a more adequate standard of care be provided for pre-trial
juvenile detainees. Plaintiffs therefore have demonstrated that
there is a likelihood of success on their Eighth Amendment
claim.

C. Plaintiffs' Equal Protection Claim

Plaintiffs also argue that their detention in Cook County
jail violates the equal protection clause. Under Ill.Rev.Stat.,
Chap. 38, § 1005-8-6(c), even if convicted in the adult
criminal justice system, a minor under the age of 17 still
cannot be confined with adults in the Adult Division of the
Illinois Department of Corrections. Apparently, juveniles under
17 who are convicted as adults are incarcerated in institutions
which theoretically provide adequate rehabilitative services.
Moreover, all juveniles under juvenile court jurisdiction
always receive these services. Plaintiffs argue that
incarcerated juveniles under adult jurisdiction who are
unconvicted can receive no less.

Under these tests, plaintiffs have sustained their burden.
The Court has already determined that there is a likelihood of
success on both the Eighth Amendment and the equal protection
claims. Dr. Schwarz' testimony shows that continued
incarceration in Cook County jail under present conditions
causes irreparable harm. Moreover, it is evident that the
public interest commands interlocutory relief. A process which
almost invariably produces juveniles which act destructively
toward themselves and society must be corrected with dispatch.

The burdens of granting interlocutory relief in the form
requested by plaintiffs present more difficult problems.
Plaintiffs have requested that they be physically transferred
to Audy Home while awaiting trial. Defendants concede that Audy
Home can provide the minimum level of care required by
juveniles but they argue that transferring plaintiffs to the
Audy Home will threaten the morals of the other detainees at
the home. Audy officials, however, already have procedures to
segregate more allegedly serious offenders from less seriously
involved children. Moreover, Dr. Schwarz testified that the
quality of the acts which plaintiffs are charged with may not
necessarily affect their behavior in custody. Additionally, the
architecture of the home and its present population guarantee
that, if necessary, plaintiffs can be effectively isolated from
other detainees. Therefore, on balance the Court determines
that physically transferring the plaintiffs to Audy Home would
not place an undue burden on the defendants. Since the evidence
demonstrates that defendants cannot now provide adequate care
for juveniles at Cook County jail or segregate young juveniles
from older juveniles and adults and provide necessary support
services, plaintiffs — and all others similarly situated —
should be transferred to Audy Home where such an environment
and services are available.

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